Unfair dismissal remains one of the most litigated areas of South African labour law. Statistics from the Commission for Conciliation, Mediation and Arbitration (CCMA) consistently show that a significant proportion of cases that proceed to arbitration result in findings against employers, not on the merits of the dismissal, but on the manner in which it was carried out.

In 2026, this trend continues. Employers across industries, from small family businesses to large corporates, frequently discover that having a valid reason to dismiss an employee is only half the legal equation. The Labour Relations Act 66 of 1995 (LRA) requires that a dismissal be both substantively and procedurally fair. Failing on either count can result in reinstatement or a compensation award of up to 12 months’ remuneration for ordinary unfair dismissal.

This article explains what procedural fairness requires, where employers most commonly go wrong, and what the updated 2025 Code of Good Practice: Dismissal means for employers in practice.

What Is Procedural Fairness in the Context of Dismissal?

Procedural fairness refers to the obligation on an employer to follow a fair process before dismissing an employee, irrespective of whether a valid substantive reason for the dismissal exists. Under section 188 of the LRA, a dismissal is unfair if the employer fails to prove that the dismissal was both for a fair reason and effected in accordance with a fair procedure.

The key components of a procedurally fair dismissal for misconduct are:

• A notification to the employee of the allegations in clear, specific terms
• A reasonable opportunity for the employee to prepare a response
• A formal hearing at which the employee may state their case and be represented by a fellow employee or trade union representative
• An impartial decision-maker who was not involved in the investigation
• A written outcome communicated to the employee, with reasons.

How the CCMA Unfair Dismissal Process Works

An employee who believes they have been unfairly dismissed must refer the dispute to the CCMA using Form LRA 7.11 within 30 days of the date of dismissal or the date on which the employee became aware of the dismissal. Late referrals may be condoned at the commissioner’s discretion, but condonation is not automatic.

The process then proceeds as follows:

• Conciliation: A commissioner facilitates a settlement discussion between the parties. If no settlement is reached, a certificate of non-resolution is issued.
• Arbitration or con-arb: The matter proceeds to arbitration, which may in some instances be conducted immediately after conciliation (con-arb). At arbitration, the commissioner hears evidence and argument and issues a binding award.
• Assessment: Commissioners assess both substantive fairness (did a valid reason for dismissal exist?) and procedural fairness (was the correct process followed?). Both limbs are assessed independently.

Where an employer wins on substantive fairness but loses on procedural fairness, a commissioner may award up to 12 months’ compensation for an ordinary unfair dismissal, or order reinstatement in cases involving automatically unfair dismissals. Procedural flaws are therefore never “technical” matters. They carry real financial consequences.

The 2025 Code of Good Practice: Dismissal – What Has Changed?

The updated Code of Good Practice: Dismissal, which came into effect in 2025, consolidates and clarifies the procedural obligations that previously appeared across multiple instruments. For employers, the principal developments are:

• SME flexibility: Small and medium-sized businesses are expressly recognised as potentially unable to conduct formal hearings in all circumstances. The Code permits simplified procedures for smaller employers, provided that the substance of fairness (notice, opportunity to respond, and a rational outcome) is preserved.
• Probationary employees:Employers must still provide representation rights during probationary disciplinary proceedings. The Code makes clear that probationary status does not exempt an employer from basic procedural obligations.
• Consistency codified:The requirement to apply disciplinary sanctions consistently is restated, and commissioners are directed to scrutinise whether comparable misconduct was treated differently in similar circumstances.
• Progressive discipline confirmed: For performance-related matters, the expectation of graduated intervention (counselling, formal warning, performance improvement plan, then dismissal) remains firmly embedded in the Code.

Importantly, commissioners in 2026 are applying the updated Code strictly. Even deviations that an employer might regard as harmless or inconsequential, such as omitting a formal written outcome letter or failing to specify the exact charges in the notice to attend a hearing, are being treated as procedural defects that can independently ground an unfair dismissal finding.

Common Procedural Mistakes That Cost Employers at the CCMA

1. Inadequate Notice and Defective Hearings

   The most frequently cited procedural defect is insufficient notice of the hearing or charges. A notice to attend a disciplinary hearing must:

   • Set out the specific allegations clearly – not merely a generic description such as “misconduct”.
   • Give the employee sufficient time to prepare – typically at least 48 hours, though this depends on the complexity of the matter.
   • Advise the employee of their right to representation.
   • On-the-spot terminations (dismissals communicated verbally without an preceding process) are almost invariably found procedurally unfair, regardless of how serious the misconduct was.

2. Poor Documentation

   At arbitration, the evidentiary burden rests on the employer. An employer who cannot produce minutes of the disciplinary hearing, investigation records, a signed acknowledgement of the notice, or a written outcome with reasons is placed in a significantly weakened position. Commissioners draw adverse inferences from gaps in documentation. Every disciplinary process must generate a paper trail from the preliminary investigation through to the communication of the outcome.

3. Inconsistent Treatment of Employees

   Selective discipline – dismissing one employee for conduct that was overlooked or treated less seriously when committed by others – is a recognised ground for procedural and substantive unfairness. Where an employer cannot justify the differential treatment by reference to aggravating factors specific to the dismissed employee (such as seniority, prior record, or the degree of harm caused), a finding of inconsistency is likely.

4. Skipping Progressive Disciplinary Steps

   For performance-related dismissals in particular, commissioners scrutinise whether the employer issued prior warnings, provided counselling, allowed a reasonable period for improvement, and considered alternatives before resorting to dismissal. Dismissing an employee for poor performance at the first instance, without prior intervention, is procedurally unfair in most circumstances unless the performance failure was so severe as to make any further employment relationship untenable.

5. Biased or Irrational Decision-Making

   The person who chairs a disciplinary hearing must be independent of the investigation. Where the same manager who investigated the matter also chairs the hearing, commissioners treat this as a structural procedural defect. Additionally, the outcome must be rational and proportionate, based on the evidence presented at the hearing.

Practical Implications for Employers

Procedural fairness is a legally enforceable right that exists independently of the merits of the disciplinary matter. The practical consequences for employers who disregard it are direct and measurable.

Employers should take the following steps as a matter of standard practice:

• Maintain a current, written disciplinary policy and ensure all managers are trained to apply it consistently.
• Keep complete records for every disciplinary matter, including investigation notes, signed copies of notices, hearing minutes, and written outcomes with reasons.
• Appoint an independent chairperson for formal hearings. This may be a senior employee not involved in the matter or, where appropriate, an external facilitator.
• Allow employees at least 48 hours’ notice of a hearing and confirm their right to union or employee representation in writing.
• For performance matters, implement a formal performance improvement plan before considering dismissal and document all counselling sessions.
• Upon receiving a CCMA referral, immediately reconstruct the full disciplinary file. Do not attempt to recreate or supplement records after the fact. This can undermine credibility at arbitration.
• Seek legal advice early. Employers who engage employment law practitioners such as MP|W at the conciliation stage are better positioned to assess the strength of their position and explore early resolution where appropriate.
• Employers who engage experienced practitioners in Labour and Employment Law at an early stage are better positioned to assess risk, ensure procedural compliance, and manage CCMA disputes effectively.

Frequently Asked Questions

1. What is the difference between substantive and procedural fairness in South African dismissal law?

   Substantive fairness concerns whether there was a valid reason for the dismissal, such as misconduct, poor performance, or operational requirements. Procedural fairness concerns whether the correct process was followed before the dismissal was effected. Under section 188 of the Labour Relations Act 66 of 1995, an employer must satisfy both requirements. A dismissal that is substantively justified but procedurally defective is still an unfair dismissal.

2. What happens if an employer wins on substance but loses on procedure at the CCMA?

   A CCMA commissioner may award compensation of up to 12 months’ remuneration for an ordinary unfair dismissal found to be procedurally unfair, even where the substantive reason was valid. In more serious cases, such as automatically unfair dismissals under section 187 of the LRA, reinstatement may be ordered. The financial exposure is therefore substantial.

3. How long does an employee have to refer an unfair dismissal dispute to the CCMA?

   An employee must refer an unfair dismissal dispute to the CCMA within 30 days of the date of dismissal or the date on which the employee became aware of the dismissal. This is done by completing Form LRA 7.11. Late referrals may be condoned by the commissioner, but condonation requires the employee to demonstrate good cause for the delay.

4. Does the 2025 Code of Good Practice: Dismissal apply to small businesses?

   Yes, the 2025 Code of Good Practice: Dismissal applies to all employers, including small and medium-sized enterprises (SMEs). However, the Code expressly recognises that smaller businesses may not be able to conduct formal structured hearings in all circumstances. It permits simplified procedures for SMEs, provided that the core elements of procedural fairness – notice, a genuine opportunity to respond, and a rational outcome – are preserved.

5. Can an employer dismiss an employee without a disciplinary hearing?

   In most circumstances, no. Dismissing an employee without conducting a disciplinary hearing is procedurally unfair under South African law. There are very limited exceptions, such as where holding a hearing is genuinely impossible or where the employee has expressly waived the right to a hearing. On-the-spot terminations, regardless of the severity of the misconduct, are almost universally found to be procedurally unfair by CCMA commissioners.

While every reasonable effort is taken to ensure the accuracy and soundness of the contents of this publication, neither writers of articles nor the publisher will bear any responsibility for the consequences of any actions based on information or recommendations contained herein. Our material is for informational purposes.